Court rules against Washington in Yucca lawsuit

By Annette Cary, Herald staff writerJuly 2, 2011 

A federal court has dismissed a lawsuit brought by the state of Washington and others arguing that the Obama administration acted illegally to abandon development of the Yucca Mountain nuclear repository.

The U.S. Court of Appeals for the District of Columbia Circuit rejected both arguments made by Washington, South Carolina and three Tri-City business leaders who filed lawsuits.

But it did offer some hope to the parties who want radioactive waste now stored in their states shipped to Yucca Mountain for disposal.

The lawsuit was filed too soon, in part because the Nuclear Regulatory Commission has not ruled on a license application for the repository, the court found. But if the NRC fails to rule by fall 2012, or possibly earlier, a lawsuit would be appropriate, the court indicated.

The petitioners argued that DOE acted illegally to withdraw a license application for the Yucca Mountain, Nev., repository before the Nuclear Regulatory Commission, and also to abandon development of the project mandated by Congress.

In 1987 amendments to the nuclear waste law, Congress designated Yucca Mountain as a repository site to dispose of used commercial nuclear power fuel and high-level radioactive defense waste, including Hanford's high-level waste.

However, the court found that even though DOE had announced it was abandoning work on the repository and creating a Blue Ribbon Commission to find another way to dispose of the nuclear waste, that did not constitute a legal decision. Obama campaigned for president in Nevada on a pledge to shut down the project.

Repurposing money appropriated by Congress for Yucca Mountain and notifying employees of the possible end of work also did not constitute a legal decision, the court found.

It also rejected the argument that DOE had acted to withdraw its license application to construct the repository, saying the NRC had not ruled on the withdrawal, so it was too soon for a lawsuit on the matter.

An NRC licensing board denied the motion to withdraw the application in June 2010, but the NRC board has not acted, even though members apparently have voted.

The NRC must act on the license application within three years of it being filed, or within four years if an extension is granted, the court pointed out. The application was submitted on June 17, 2008, and entered on a docket about three months later.

"This case is far from over," said Rob McKenna, Washington's attorney general, in a statement. "The court of appeals today ruled only that our suit is premature."

The Office of the Attorney General will consider options for moving forward with the Governor's Office and other petitioners, who include Tri-City business leaders Gary Petersen, Bob Ferguson and Bill Lampson, McKenna said.

He was encouraged that the court recognized the federal government has a legal responsibility to dispose of the nation's high-level radioactive waste and that Washington's fear was reasonable that it would be stuck with waste by default.

The ruling makes Hanford the repository for the site's high-level nuclear waste "with no vote by the public and no action by Congress," Petersen said.

DOE "will call it interim storage, but what is interim?" he said.

Rep. Doc Hastings, R-Wash., also was not happy with the ruling.

"This administration is purposefully going far enough to complete their illegal Yucca shutdown, while using NRC stall tactics to prevent the court from ruling on the merits of the case," he said in a statement.

He accused the NRC of refusing to release its decision either to prevent a court ruling or because it lacked the member votes to uphold a shutdown.

"If the NRC would have done its job, today's announcement would no doubt be very different," Hastings said. "I am, however, encouraged that the court has signaled an unwillingness to allow an infinite NRC delay."

One of the three judges who ruled, Brett Kavanaugh, wrote in a concurring opinion that "the case is a mess" because the Department of Energy and the NRC have overlapping legal responsibilities for Yucca Mountain.

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